The ACLU Urges Congress to Be Skeptical of Administration Claims on FISA

WASHINGTON – Director of National Intelligence Mike McConnell and President George W. Bush have launched their version of a charm offensive to try to get controversial wiretapping legislation passed. Caroline Fredrickson, director of the ACLU Washington Legislative Office said, "As part of the PR effort to gut the Foreign Intelligence Surveillance Act, the Bush administration has pulled out every scare tactic in the book including exaggeration and outright fibbing. This goes hand-in-hand with the usual fear-mongering, all designed to get Congress to vote to suspend the Fourth Amendment rights of Americans."

The ACLU offers this guide to myths and facts around the administration's efforts to undermine the civil liberties protections in the Foreign Intelligence Surveillance Act.

Myth: FISA needs to be expanded based on new technology.

Reality: FISA was specifically written to be technology neutral. There is absolutely no new technology that cannot be intercepted with a warrant under FISA. None. Even the man responsible for prepping and filing all FISA applications, James Baker, head of the Justice Department's Office of Intelligence Policy and Review, has said that, "There's no type of collection that's prohibited by the statute."

Reality: No. What McConnell isn't saying, is that the new law also allows the government to collect foreign to domestic calls and, quite possibly, domestic to domestic calls. Any communications that are "directed at" or even "concerning" someone overseas may be collected, even when one party to the communication is an American. That means that Americans will have our calls and emails swept up in this newly legalized dragnet.

Myth: McConnell said that it takes 200 "man" hours to get a court order to access a telephone number.

Reality: The math, courtesy of Wired.com. "In 2006, the government filed 2,181 such applications with the Foreign Intelligence Surveillance court. The court approved 2,176 2006 FISA Warrant Applications. That means government employees spent 436,200 hours writing out foreign intelligence wiretaps in 2006. That's 53,275 workdays." The numbers have been greatly exaggerated. Also, in a June 2007 article in the Washington Post, Royce C. Lamberth, the presiding judge of FISC on 9-11 said he approved FISA warrants in minutes with only an oral briefing.

Even if it is merely a resource issue, there were and are bipartisan bills that would streamline the application process and grant more resources.

Besides, there is no "too-much-paperwork" exception to the Fourth Amendment.

Myth: Only 100 people in the U.S. are being surveilled.

Reality: Before this program was in place, maybe, but we don't know. However, after passage of the "Protect America Act," intelligence authorities are allowed to pick up all communications as long as one party is outside of the U.S. It's a game of semantics – they may not technically be the "target" but it doesn't matter because Americans' phone calls are monitored and American's emails are collected.

Myth: The "Protect America Act" requires a warrant for U.S. persons.

Reality: Again – not really. The government only needs a warrant if it is intentionally targeting a specific U.S. individual. It can, however, conduct mass untargeted surveillance of all communications coming into or out of the U.S. In other words, the Fourth Amendment has been turned on its head and suspected terrorists will have more protections than innocent Americans.

Myth: Retroactive amnesty for telecommunications companies' involvement must be addressed.

Reality: These companies broke the law, and now they want Congress to completely absolve them of any accountability. The only thing more disturbing than the phone companies violating our rights is that members of Congress are now discussing whether to foot the bill for the fines with your tax dollars. They want to absolve the telecoms from pending lawsuits filed by citizens who have had their privacy violated, and instead have the government stand on trial in place of the companies.

What incentive will companies have to protect our information in the future if there are absolutely no consequences for violating our privacy?

Myth: Americans will die because of the public debate.

Reality: Years before the NSA's wiretapping program was disclosed in the pages of the New York Times, the Bush administration had been making it quite clear that terrorism suspects were being monitored. Terrorists are well aware that their communications are being scrutinized – that's why they use code words. Having a frank and open discussion in the public square about the rights of Americans is the very essence of our democracy. To suggest that having a public debate about surveillance would cost American lives is one of the most sinister and manipulative claims to come out of this dialogue.

Myth: The so called "Protect America Act" helped thwart a terror attack in Germany.

Reality: No. That's not true. In fact, after making this statement to the Senate Judiciary Committee last week, McConnell had to retract it.